Right to legal representation for public sector employees

Posted on 30th January 2010

Case law

Public sector employees may have the right to be legally represented at disciplinary hearings if there is the possibility that their dismissal will prevent them from working in their profession in the future.

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the right to a fair trial applied because the internal disciplinary proceedings were "a determinant of the claimant's right to practice his profession"

R (on the application of G) v X School [2010]

The decision

The Court of Appeal has confirmed that a teaching assistant, who was accused of sexual misconduct at school with a 15 year old boy, was entitled to legal representation during the disciplinary proceedings. Article 6 of the European Convention on Human Rights (right to a fair trial) applied because the internal disciplinary proceedings were "a determinant of the claimant's right to practice his profession". The Court took into account the seriousness of the charge which, if proven, had a real likelihood of ending the teaching assistant's career.

The Court of Appeal explained that the right to legal representation would not apply in every case. The level of protection under Article 6 will depend on the allegation being made and the potential consequences for the employee. In broad terms, the more serious the allegation or charge, the more astute the courts should be to ensure that the disciplinary process is a fair one.

Public sector employers

This decision only applies to public sector employers. To avoid challenges of this sort, they should offer legal representation at disciplinary hearings to those employees whose employability in that particular job is at stake.

This case is a further step towards permitting certain employees from benefiting from legal representation. Our previous hrlegal news article dated 29 July 2009 about the Kulkarni case highlighted how a doctor was contractually entitled to legal representation at a disciplinary hearing. Here the court suggested that Article 6 applied where an NHS doctor faces charges which are of such gravity that, if proved, they will effectively bar him from employment in the NHS.

Clear, concise and accurate information for employers and HR professionals

This High Court case highlights (again) why employers must take great care when considering whether to suspend an employee who is accused of gross misconduct allegations. Get it wrong and an unjustified ‘knee jerk’ suspension will be a breach of the implied term relating to mutual trust and confidence.

The test is not whether the employee can do the job but whether there was a reasonable and genuine belief that the employee was exaggerating their illness.

Posted 10th October 2016

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